hundred and forty acres, a part of which was lot 1 in section 34, including the strip now in controversy; and he lived on that land at the mouth of Thief river, and made it his home, and had a log house, a garden, and a fish trap there. He died in 1872, before the lands were surveyed, and was succeeded as chief by his eldest son, who had been born at Red Lake in 1828, and who was known to the whites by the same name of Moose Dung or Monsimoh, and to the Indians as Mayskokonoyay, meaning "The one that [6] wears the *red robes;" and, ever since the making of the treaty, his father and himself, in succession, sustained tribal relations with the Red Lake band of Chippewa Indians, and that band continued to be recognized as an Indian tribe by the government of the United States. cepted the lease, and paid the rent according to its terms; and in 1892 they erected a large saw mill on the bank of Thief river, a short distance below the strip leased, and entered upon this strip, drove piles and strung booms in the river opposite, and stored logs there, and thenceforth used the strip as one shore of the mill-pond appurtenant to their saw mill. The land selected by Moose Dung was near the village of Thief River Falls, which, when this lease was made, contained some fifty inhabitants and had no railroad and no important industry, and land there was of little value. But in 1892, after the erection of the plaintiffs' saw mill, the Great Northern Railway Company built a railroad to the village, a large settlement sprang up there, and the land increased in value. On July 20, 1894, Moose Dung the young. er, describing himself as "Monsimoh (commonly called Moose Dung), heir and successor of his father Monsimoh (also commonly called Moose Dung)," made a lease of the whole of lot 1 in section 34, and of all appurtenances and riparian rights thereto belong On June 27, 1879, the United States Indian agent at White Earth, Minnesota, wrote to the Commissioner of Indian Affairs at Washington that Moose Dung the younger, the only surviving son of Moose Dung named in the treaty, requested that the land selected by his father might be set aside for his benefit. On July 25, 1879, the Commission-ing, for twenty years, to the defendant, at er of Indian Affairs answered that Moose an annual rent of two hundred dollars; and Dung the younger should at once locate the on July 23, 1894, this lease was recorded in desired lands in accordance with the descrip- the registry of deeds. The defendant at tion in the treaty; and that it must be the time of obtaining this lease knew of the shown to the satisfaction of the Office of In- prior lease and possession of the plaintiffs. dian Affairs that his father left no other On August 4, 1894, Congress passed a joint children. On September 10, 1879, the agent resolution authorizing the Secretary of the replied that "the heirs of Moose Dung" had Interior "to approve, if in his discretion he selected the lands (describing them particu- deems the same proper and advisable, and larly) that had been selected by the elder upon such terms as he may impose," this Moose Dung before his death. On Septem- lease to the defendant. 28 Stat. at L. 1018. ber 30, 1879, the Secretary of the Interior, On December 27, 1894, the Secretary of the on the recommendation of the Commissioner Interior approved this lease, upon condition of Indian Affairs, approved "the selection (to which both the lessor and the lessee asmade by the heirs of Moose Dung," and di-sented) that the annual rent should be four rected the Commissioner of the General Land hundred dollars, and "be paid to the agent Office to "take the necessary steps for in charge of the Chippewa Indians in Minnethe protection of the said lands so reserved sota, and by him paid to the parties found for the benefit of those entitled, as contem- to be entitled thereto by this Department,” plated by the treaty stipulations;" and they and should be readjusted every five years, were thereupon set apart accordingly, and and "the said premises, nor any part therewere designated on all government maps as of, shall not be sublet without the written [8] "Moose Dung's reservation." consent of the lessor, his heirs or assigns, and the approval of the Secretary of the Interior."" From the time of this selection Moose Dung the younger lived upon, exercised dominion over, and claimed to own, the land so selected, and cultivated part of it, leased other parts of it for pasturage, and sold sand off it. On November 7, 1891, Moose Dung the younger, describing himself as "Moose Dung, of Thief River Falls, Polk county, Minnesota," made a lease to the plaintiffs, for ten years, at an annual rent of twenty-five dollars, of this strip of land and all shore rights for storing logs, erecting piles and booms, and for all purposes connected with lumbering; and he affixed to it his mark and seal; and [7] acknowledged it before a notary public, *after its contents had been fully explained to him through an interpreter. On November 10, 1891, this lease was recorded in the registry of deeds for the county. The plaintiffs ac The circuit court held that the reservation in the treaty to the elder Moose Dung was in the nature of a grant of title to him, burdened with no restriction or condition save that of selection and identification; that upon the selection and location the title in the selected lands vested in Moose Dung the younger as his eldest son and successor; that the latter's lease of November 9, 1891, to the plaintiffs was a valid and subsisting lease of the strip in controversy, and needed no approval by the Secretary of the Interior; that the lease made on July 20, 1894, to the defendant, and approved by the Secretary of the Interior, was subordinate to the lease to the plaintiffs, and, as against them, conveyed no right to the occupancy or use of the strip; and that the plaintiffs were entitled to have the rights and privileges under the earlier lease vested and quieted in them as against the claims of the defendant. 70 Fed. Rep. 453. The defendant appealed to this court. The fundamental question in the case is, What was the nature of the title which the elder chief Moose Dung took under the treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians? Was it a mere right of occupancy, with no power to convey the land except to the United States, or by their consent? Or was it substantially a title in fee simple with full power of alienation? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by the Indians to anyone but the United States, without the consent of the United States. Johnson v. McIntosh, 8 Wheat. 543, 5 L. ed. 681; Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L. ed. 25, 31; Worcester v. Georgia, Pet. 515, 544, 8 L. ed. 483, 495; Doe, Mann, v. Wilson, 23 How. 457, 463, 16 L. ed. 584; United States v. Cook, 19 Wall. 591, 22 L. ed. 210; United States v. Kagama, 118 U. S. 375, 381, 30 L. ed. 228, 230, Sup. Ct. Rep. 1109; Buttz v. Northern P. R. Co. 119 U. S. 55, 67, 30 L. ed. 330, 335, 7 Sup. Ct. Rep. 100. In the leading case of Johnson v. McIntosh (1823) it was therefore held that grants of [9]lands *northwest of the river Ohio, made in 1773 and 1775 by the chiefs of certain Indian tribes constituting the Illinois and the Pinkeshaw nations, to private individuals, conveyed no title which could be recognized in the courts of the United States; and Chief Justice Marshall, in delivering judgment, said: "The usual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated." 8 Wheat. 598, 5 L. ed. 694 Accordingly, by several early treaties be tween the United States of the one part, and the Chippewas and other Indian nations of the other part, the said Indian nations acknowledged themselves to be under the protection of the United States, and of no other Sovereign whatever; the United States relinquished and quitclaimed to the said nations respectively all the lands lying within certain limits, to live and hunt upon, and other wise occupy as they saw fit; but the said nations, or either of them, were not to be at liberty to dispose of those lands, except to the United States. Treaties of January 21, 1785. art. 2; January 9, 1789, art. 3; August 3, 1795, arts. 4, 5; 7 Stat. at L. 16, 29, 52. Soon after the adoption of the Constitution, the same doctrine was repeatedly recognized and enforced by Congress in temporary acts regulating trade and intercourse with the Indian tribes. By the act of July 22, 1790, chap. 33, § 4, it was "enacted and de clared that no sale of lands made by any Indians, or any nation or tribe of Indians, within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty held under the authority of the United States." 1 Stat. at L. 138. In the act of March 1, 1793, chap. 19, § 8, the corresponding provision was that "no purchase or grant of lands, or of any title or claim thereto, from any Indians, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by a treaty or convention entered into pursuant to the Constitution." 1 Stat. at L. 330. In the acts of May 19, 1796, chap. 30, *§ 12, and [10] March 3, 1799, chap. 46, § 12, this provision was re-enacted, substituting for the words "purchase or grant" the words "purchase, grant, lease, or other conveyance," and for the words "any Indians," in the plural, the words "any Indian," in the singular, so as other conveyance of lands, or of any title or to read: "No purchase, grant, lease, or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty, or convention entered into pursuant to the Constitution." 1 Stat. at L. 472, 746. And this language of the temporary acts of 1796 and 1799 was repeated in the first permanent enactment upon the subject, being the act of March 30, 1802, chap. 13, § 12. 2 Stat. at L. 143. It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the executive authority of the United States. Johnson v. McIntosh, 8 Wheat. above cited; Mitchel v. United States, Pet. 711, 748, 9 L. ed. 283, 296; Doe, Godfrey, v. Beardsley, 2 McLean, 417, 418; United States v. Brooks, 10 How. 442, 460, 13 L. ed. 489, 496; Doe, Mann, v. Wilson, 23 How. 457, 463, 16 L. ed. 584; Crews v. Burcham, 1 Black, 356, 17 L. ed. 91; Holden v. Joy, 17 Wall. 211, 247, 21 L. ed. 523, 535; Best v. Polk, 18 Wall. 112, 116, 21 L. ed. 805, 807; New York Indians v. United States, 170 U. S. 1, 42 L. ed. 927, 18 Sup. Ct. Rep. 531. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named. The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall's description, that "they are in a state of pupilage," and "their relation to the United States resembles that of a ward to his guardian," has become more and more appropriate as they have grown less powerful and more dependent. Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L. ed. 25, 31; Elk ing, should form the rule of construction." 6 Pet. 582, 8 L. ed. 508. The defendant's counsel at the argument relied on an opinion given by Chief Justice Taney, when Attorney General, under the following circumstances: By the treaty made at Camp Tippecanoe in the state of Illinois on October 20, 1832, between the United States and the Pottawatomie tribe of Indians of the Prairie and Kankaukee (while the act of March 30, 1802, chap. 13, was in force), that tribe ceded a large tract of land in Illinois to the United States, and it was provided that "from the cession aforesaid the following tracts shall be reserved, to wit," a certain number of sections to each of particular Indians named. 7 Stat. at L. 378. On September 20, 1833, Attorney General Taney gave an opinion to the Secretary of War that "these reservations are excepted out of the grant made by the treaty, and did not therefore pass by it; consequently, the title remains as it was before the treaty; that is to say, the lands reserved are still held under the original Indian title;" and therefore "the Indian occupants cannot convey them to individuals, and no valid cession can be made of their interest but to the United States." 2 Ops. Atty. Gen. 587. But within a year after that opinion was given, and perhaps in consequence thereof, Congress in framing a new act regulating trade and intercourse with the Indian tribes, omitted the prohibition, contained in former statutes, of purchases or leases from "any Indian," and put the provision invalidating In v. Wilkins, 112 U. S. 94, 99, 28 L. ed. 643, 645, 5 Sup. Ct. Rep. 41; United States v. Kagama, 118 U. S. 375, 382, 384, 30 L. ed. 228, 230, 231, 6 Sup. Ct. Rep. 1109; Stephens v. Cherokee Nation, 174 U. S. 445, 484, 43 L. ed. 1041, 1055, 19 Sup. Ct. Rep. 722. In construing any treaty between the [11] United States and an *Indian tribe, it must always (as was pointed out by the counsel for the appellees) be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians. Worcester v. Georgia, 6 Pet. 515, 8 L. ed. 483; The Kansas Indians, 5 Wall. 737, 760, sub nom. Blue Jacket v. Johnson County Comrs. 18 L, ed. 667, Wan-Zop-E-Ah v. Miami County Comrs. 18 L. ed. 674; Choctaw Nation v. United States, 119 U. S. 1, 27, 28, 30 L. ed. 306, 314, 315, 7 Sup. Ct. Rep. 75. Indian conveyances in this altered form: "No the leading case of Worcester v. Georgia (1832) Chief Justice Marshall, speaking of article 4 of the treaty of Hopewell of November 28, 1785, between the United States and the Cherokee Indians, which defined "the boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States" (7 Stat. at L. 19), said: "There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that everyone makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them." "Is it reasonable to suppose that the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language, should distinguish the word 'allotted' from the words 'marked out?'" 6 Pet. 551, 552, 8 L. ed. 497, 498. And Mr. Justice McLean, concurring, said: "The language used in treaties with the Indians should never be construed to their prejudice." "To contend that the word 'allotted,' in reference to the lands guaranteed to the Indians in certain treaties, indicates a favor conferred, [12] rather than a right acknowledged, *would, it would seem to me, do injustice to the understanding of the parties. How the words of the treaty were understood by this unlettered people, rather than their critical mean purchase, grant, lease, or other conveyance of The supplementary articles of September dians, making provision for "various Choc-| Caddoes had in these lands, as fully as any taw persons," used, as synonymous expressions, the phrases "shall be entitled to a reservation of," "is allowed a reservation of," "there shall be granted," "there is given," or "is granted," sections of land, either in cluding the present residence and improvement of such persons, or to be located on any unimproved and unoccupied land. 7 Stat. at L. 340. In Gaines v. Nicholson (1850) 9 How. 356, 13 L. ed. 172, Mr. Justice Nelson, in delivering the opinion of the court, did say of such a reservation: "It was so much carved out of the territory ceded, and remained to the Indian occupant, as he had never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title confirmed by the government in the act of agreeing to the reservation." 9 How. 365, 13 L. ed. 176. But that treaty was made before the act of Congress of 1834; the only question in the case was of the effect of the reservation as against a previous grant of land by Congress to a state for the support of schools; the court had no occasion to define, and did not undertake to define, the exact nature of the title granted or confirmed by the treaty; and the suggestion, in accordance with Attorney General Taney's opinion, above cited, that the treaty rather confirmed the Indian right than [14] granted a new *title, can hardly be reconciled with the later judgments of the court, to be presently considered, one of which was delivered by the same learned judge. Crews v. Burcham, 1 Black, 352, 17 L. ed. 91. patent from the government could make one. are By the first article of a treaty made on the Tippecanoe river in the state of Indiana on October 27, 1832, between the United States and the Pottawatomies of that state and of Michigan territory, that tribe of Indians ceded their title and interest to lands in Indiana, Illinois, and Michigan to the United States. By article 2, "from the cession aforesaid, the following reservations made" to certain bands of Indians. And by article 3, "the United States agree to grant to each of the following persons the quantity of land annexed to their names, which lands shall be conveyed to them by patent." "The foregoing reservations shall be selected under the direction of the President of the United States, after the lands shall have been surveyed, and the boundaries to correspond with the public surveys." 7 Stat. at L. 399-401. In concluding the treaty of July 1, 1835, between the United States and the Caddo nation of Indians, in Louisiana, supplementary articles were added, by which, after a recital that that nation had in 1801 granted to one Francois Grappe (who was a half-blood Caddo) and to his three sons a league of In Doe, Mann, v. Wilson (1859) 23 How. land each, "it is agreed" that Grappe's legal 457, 16 L. ed. 584, it was held, in an action representatives and his said three sons "shall of ejectment, that a warranty deed made by have their right to the said four leagues of Petchico (a Pottawatomie chief, one of the land reserved to them and their heirs and persons named in the third article of that assigns forever. The said land to be taken treaty), in February, 1833, to citizens of Indiout of the lands ceded to the United States ana, before the lands had been surveyed or by the said Caddo nation of Indians as ex- a patent granted, passed a good title as pressed in the treaty to which this article is against a deed made by his heirs after the supplementary. And the said four leagues issue of the patent and his death. The of land shall be laid off in one body," at a court, speaking by Mr. Justice Catron, said: place described, in conformity with the boun- "The Pottawatomie nation was the owner of daries "expressed in the original deed of the possessory right of the country ceded, gift" from the Caddo nation to Grappe and and all the subjects of the nation were joint his three sons. 7 Stat. at L. 473. In owners of it. The reservees took by the United States v. Brooks (1850) 10 How. treaty, directly from the nation, the Indian 442, 13 L. ed. 489, it was argued for the title; and this was the right to occupy, use, United States that the effect of this agree and enjoy the lands, in common with the ment was simply that the Grappes should United States, until partition was made in retain their right, whatever it might be, un- the manner prescribed." This sentence has der the reservation of 1801, and that that sometimes been supposed to indicate that by reservation was not authorized by the laws the treaty the reservees took directly from then in force there. But it was adjudged the Indian nation its possessory right only, that its effect was to vest in the Grappes an defined as "the right to occupy, use, and enabsolute title in fee simple, which they joy the lands in common with the United might convey to anyone; the court, speak- States." But this was qualified by *the con- [16] ing by Mr. Justice Wayne, saying: "We cluding words of the same sentence, "until think that the treaty gave to the Grappes a partition was made in the manner prefee-simple title to all the rights which the scribed;" that is to say, by the treaty. And the court went on to say, in the most dis-ity is the technical one as to the vesting of tinct terms: "The treaty itself converted the legal title." "We think it quite clear, if the reserved sections into individual proper- this patent had issued to Besion in his lifety. The Indians as a nation reserved no in- time, the title would have inured to his granterest in the territory ceded; but, as a part tee. The deed to Armstrong recites the resof the consideration for the cession, certain ervation to the grantee of the half section individuals of the nation had conferred on under the treaty, and that it was to be locatthem portions of the land, to which the ed by the President after the lands were surUnited States title was either added or prom- veyed; and then, for a valuable consideraised to be added, and it matters not which tion, the grantee conveys all his right and for the purposes of this controversy for pos- title to the same with a full covenant of warsession. The United States held the ulti ranty. The land is sufficiently identified to mate title, charged with the right of undis- which Besion had the equitable title, which turbed occupancy and perpetual possession was the subject of the grant, to give operain the Indian nation, with the exclusive tion and effect to this covenant on the issupower in the government of acquiring the ing of the patent, within the meaning of this right. Although the government alone can act of Congress. [Act of May 20, 1836, purchase lands from an Indian nation, it chap. 76; 5 Stat. at L. 31.] The act declares does not follow that, when the rights of the the land shall inure to, and become vested in, nation are extinguished, an individual of the the assignee, the same as if the patent had nation who takes as private owner cannot issued to the deceased in his lifetime." sell his interest. The Indian title is prop- "Some expressions in the opinion delivered erty, and alienable unless the treaty had pro- in the case of Doe, Mann, v. Wilson, the first hibited its sale. So far from this being the case that came before us arising out of this case in the instance before us, it is manifest treaty, were the subject of observations by that sales of the reserved sections were con- the learned counsel for the appellant in the templated, as the lands ceded were forthwith argument, but which were founded on a misto be surveyed, sold, and inhabited by a apprehension of their scope and purport. It white population, among whom the Indians was supposed that the court had held that could not remain." 23 How. 463, 464, 16 L. the reservee was a tenant in common with ed. 586. the United States after the treaty of cession and until the survey and patent. It will be seen, however, that the tenancy in common there mentioned *referred to the right to oc- [18] cupy, use, and enjoy the land in common with the government, and had no relation to the legal title." 1 Black, 356, 357, 17 L. ed. 92. In Crews v. Burcham (1861) 1 Black, 352, 17 L. ed. 91, a warranty deed made by Francis Besion, another person named in the third article of that treaty, under like circumstances, to one Armstrong, was accord ingly held to vest the legal title in him; and the scope and effect of the decision in Doe, Mann, v. Wilson were clearly brought out in the opinion delivered by Mr. Justice Nelson, as follows: "It was there held that the reservation created an equitable interest in the land to be selected under the treaty; that it was the subject of sale and conveyance; that Petchico was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee. It is true that no title to the particular lands in question could vest in the reservee, or in his grantee, [17] until the location by the President, *and, perhaps, the issuing of the patent; but the obligation to make the selection as soon as the lands were surveyed, and to issue the patent, is absolute and imperative, and founded upon a valuable and ineritorious consideration. The lands reserved constituted a part of the compensation received by the Pottawatomies for the relinquishment of their right of occupancy to the government. The agreement was one which, if entered into by an individ ual, a court of chancery would have enforced by compelling the selection of the lands and the conveyance in favor of the reservee, or, in case he had parted with his interest, in favor of his grantees. And the obligation is not the less imperative and binding because entered into by the government. The equitable right, therefore, to the lands, in the grantee of Besion, when selected, was perfect, and the only objection of any plausibil By those two decisions it was determined that the "reservations," created by the treaty with the Pottawatomies of October 27, 1832, in favor of individual Indians, by the words "the United States agree to grant" to each of them sections of land, which lands shall be conveyed to them by patent," had the effect of granting a present and alienable interest to each. In both those decisions Chief Justice Taney concurred-which is worthy of special notice in view of the different opinion, above cited, which he had given, when Attorney General, upon the effect of similar reservations in a treaty made with another band of Pottawatomies seven days earlier, but promulgated by the President at the same time as this treaty. 7 Stat. at L. 378, 399. And the two decisions were cited and approved by this court, speaking by Mr. Justice Matthews, in Prentice v. Stearns (1885) 113 U. S. 435, 446, 447, 28 L. ed. 1059, 1063. See also the opinion de livered by Mr. Justice Miller in the circuit court in Prentice v. Northern P. R. Co (1890) 43 Fed. Rep. 270, 275. In the treaty of June 3, 1825, between the United States and the Kansas nation of Indians, it was provided, by article 6, that from the lands thereby ceded to the United States there should be made reservations of 1 mile square for each of the half-breeds named; and, by article 11, that "the said Kansas nation shall never sell, relinquish, or |